Silence of the Lambs: What information does Investigative Committee want to remain undisclosed?

Deputy Chairman of the Human Rights Center "Viasna" Valiantsin Stefanovich regards taking the undertakings not to disclose the materials of the preliminary investigation on the "graffiti case" as harassment of the defendants. The human rights activist reflects on the legality of such actions of the Investigative Committee.

August 31 it became known that the accused in the "case of graffiti", Maksim Piakarski and Vadzim Zharomski, were released from custody on recognizance not to leave.

According to the official statement of the Investigative Committee, the grounds for changing the preventive measure against the accused were the full confession of guilt, remorse for the crime and the compensation of damage. In its statement, the Investigative Committee said nothing about the fact that before their release M. Piakarski and V. Zharomski were made to sign undertakings not to disclose the materials of the preliminary investigation.

We can only guess, the publication of what information the Investigative Committee is so much afraid of. Could it be information about the way the guys were detained, or the methods of investigation that were used against them? Or maybe the information that the questions, asked by the investigators, were far beyond the formal charges?

Incidentally, the Investigative Committee keeps silent and refrains from any comments regarding the information about the groundless and severe beating of the accused during the detention, as a result of which some of them sustained heavy injuries.

However, let's return to the question of the legality of demanding an undertaking about non-disclosure of the materials of the investigation, taken by the officials of the Investigative Committee from the suspects.

Part 2 of Article 198 of the Criminal Procedure Code (CPC) of the Republic of Belarus contains a list of the persons and parties to the proceedings, whom the investigator or the person conducting the inquiry has the right to warn about the inadmissibility of disclosure of information available in the case. Such persons include: the defenders, victims, civil plaintiffs, civil defendants, representatives, witnesses, experts, specialists, interpreters, attesting witnesses and other persons present at investigative and other procedural actions. Only these parties to the proceedings can be made to give an undertaking about the responsibility in accordance with Art. 407 of the Criminal Code.

i.e., this list does not include such parties to criminal proceedings as suspects and accused persons. Suspects and accused persons are independent parties to the proceedings and have their rights and duties established by the Code of Criminal Procedure. According to Art. 41 and 43 of the Code of Criminal Procedure suspects and accused persons have only three duties: to come to the authority, conducting the criminal proceedings, when summoned; to obey the lawful orders of the authority conducting the criminal proceedings; to participate in investigative and other proceedings, if deemed necessary by the authority conducting the criminal proceedings. That's all.

Meanwhile, according to the Article. 43 of the CCP the accused, among other things, has the right to declare his innocence, and in general must be provided with the opportunity to defend himself by the statutory means and methods (Art. 17 CCP). Thus, the accused have the right to publicly assess the charges against them, to present arguments about their innocence and to give publicity to the facts of violations of their rights during the preliminary investigation. In addition, defendants and suspects, as well as other citizens, have the right to defend their honor and dignity. All these actions are legitimate forms of protection, and their limitation by the investigating authorities is unlawful restriction of the right to defense.

Thus, taking an undertaking about the non-disclosure of the materials of preliminary investigation
from M. Piakarski and V. Zharomski constitues a gross violation of their procedural rights and the imposition of obligations not stipulated by the current legislation on criminal procedure.

It should be noted that such a vicious practice, when the authorities conducting the preliminary investigation force accused persons and suspects to give written undertakings not to disclose the materials of the preliminary investigation, is systematic. This is especially true of cases involving allegations or suspicions of crimes against the state – treason in particular. The bodies of the preliminary investigation, and according to the actus reus it is usually the KGB, as a rule, take such
undertakings not only from from the defenders, but also from the suspects and the accused persons. According to the KGB, taking such subscriptions is dictated by the availability of information on state secrets in the case. However, I should again refer to Art. 407 of the Code of Criminal Procedure, part 3 of which provides for the right of the investigator to warn about the responsibility for the disclosure of information constituting state secrets or other secrets protected by the state and contained in the materials of the case, only the persons listed in part 2 of this article: the defense, victim, civil plaintiff, civil defendant, representatives, witnesses, experts, specialists, interpreters, attesting witnesses and other persons present during the investigative and other procedures. Thus, suspects and accused persons may not be warned about the responsibility even for the disclosure of the materials of the investigation, which contain state secrets and other secrets protected by the state (such as duty secrets).

But the practice suggests otherwise. During the preliminary investigation the investigating authorities have taken similar undertakings from accused persons and suspects including A. Alesin, A. Haidukou, priest Lazar, M. Zhamchuzhny, which is unlawful imposition of obligations on these persons and violates their right to a defense. In such a way the society is deprived of the information that could, among other things, shed light on the possible abuses committed by the investigating authorities with respect to these persons, as well as on the true reasons for the persecution of these citizens. It should be noted that all of these cases have had great public resonance and provoke a natural interest of human rights organizations in the country.

Taking such undertakings seems to constitute a form of intimidation and pressure on persons against whom criminal proceedings are underway, which is certainly contrary to the fundamental principles and objectives of the criminal proceedings, declared by the Criminal Procedure Code of Belarus.